[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[Â§ 54. Judging Qualifications of Recipients]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6137-6139]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
    E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING 
     EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS
 
Sec. 54. Judging Qualifications of Recipients

Past Employment of Heads of Departments

Sec. 54.1 An amendment providing that no part of an appropriation shall 
    be paid to the head of any executive department who, within a 
    specified period was a partner in a firm which derived any income 
    from representing a foreign government, was held to be a proper 
    limitation on an appropriation bill and in order.

    On July 26, 1951,(10) the Committee of the Whole was 
considering H.R. 4740, a Departments of State, Justice, Commerce, and 
the Judiciary appropriation bill. The Clerk read as follows:
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10. 97 Cong. Rec. 8963, 8965, 82d Cong. 1st Sess.
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        Amendment offered by Mr. (John) Phillips (of California): On 
    page 58, following line 14, add a new section to be numbered 
    section 602:
        ``None of the money appropriated in this act shall be paid to 
    the head of any executive department who, within a period of 5 
    years preceding his appointment, was a partner in, or a

[[Page 6138]]

    member of, a professional firm which derived any part of its income 
    from representing, or acting for, a foreign government, or who, 
    acting as an individual, derived income from such 
    representation.''. . .
        The Chairman: (11). . . The Chair is prepared to 
    rule.
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11. Jere Cooper (Tenn.).
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        The gentleman from California has offered an amendment which 
    has been reported by the Clerk. The gentleman from New York has 
    made a point of order against the amendment on the ground that it 
    is not a proper limitation on an appropriation bill.
        The Chair has examined the amendment with some degree of care. 
    . . .
        It should be clear that almost any limitation must necessarily 
    require some action on the part of somebody. One of the classic 
    illustrations given on many occasions by the distinguished 
    parliamentarian to whom the Chair made reference a few moments ago, 
    Hon. James R. Mann, of Illinois, was that if a provision states 
    that ``no part of this appropriation shall be paid to a red-headed 
    man,'' somebody will have to find that red-headed man and determine 
    whether his hair is red; therefore, it would appear that in any 
    instance where a limitation is sought to be imposed there must be 
    some activity contemplated or some effort exerted by someone to 
    carry out the provisions of the limitation.
        The Chair would invite attention to section 1593 of Cannon's 
    Precedents, and reads the syllabus:

            A provision that no part of an appropriation be used for 
        payment of any employee not appointed through the civil service 
        was held to be a limitation and in order on an appropriation 
        bill. . . .(12)
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12. For more recent precedents involving limitations on funds for 
        salaries of certain employees as described in provisions of an 
        appropriation bill or amendment, see, for example, Sec. 74, 
        infra.
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        The Chair is of the opinion that that decision is applicable to 
    the pending question raised by the point of order made by the 
    gentleman from New York. It would appear that the over-all and 
    controlling element of the pending amendment is a limitation on an 
    appropriation bill. It is entirely negative in character, and does 
    not affirmatively impose any additional duties upon anybody.
        Therefore the Chair overrules the point of order.

Qualification of Nonfederal Supplier of Goods or Services

Sec. 54.2 An amendment to a general appropriation bill providing that 
    none of the funds therein shall be used to purchase goods or 
    services from suppliers who compensate any of the officers or 
    employees in excess of a certain rate was held a valid limitation 
    on the use of funds in the bill which merely defined nonfederal 
    employer recipients who could not receive funds and did not 
    affirmatively impose salary levels.

[[Page 6139]]

    On June 15, 1972,(13) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 15417), a point of 
order was raised against the following amendment:
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13. 118 Cong. Rec. 21136, 92d Cong. 2d Sess.
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        Mr. [Andrew] Jacobs [Jr., of Indiana]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Jacobs: On page 40, after line 4, 
        insert:
            ``Sec. 409. No part of the funds appropriated by this Act 
        shall be used to purchase goods or services from a supplier 
        which compensates any officer or employee at a rate in excess 
        of level II of the Executive Schedule under section 5313 of 
        title 5, United States Code.''

        Mr. [Daniel J.] Flood [of Pennsylvania: Mr. Chairman, I make a 
    point of order against the amendment.
        The Chairman: (14) The gentleman will state his 
    point of order.
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14. Chet Holifield (Calif.).
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        Mr. Flood: Mr. Chairman, again I am referring to Cannon's 
    Procedure of the House of Representatives, and I am referring to 
    pages 69 and 70, under the heading, ``Construed as legislation and 
    not limitations and therefore not admitted''.
        I go on to read:

            Provision that no part of an appropriation should be used 
        except in a certain way, thereby restricting executive 
        discretion to the extent of imposing new duties.

        Now, this is clearly what is being attempted in this amendment.
        The Chairman: Does the gentleman from Indiana desire to be 
    heard on the point of order?
        Mr. Jacobs: Mr. Chairman, only to say that I think this is 
    clearly a limitation on an appropriation bill, and there have been 
    many occasions where appropriations cannot be used to make 
    purchases with corporations where certain activities are carried on 
    by the corporation.
        I have nothing further to say.
        The Chairman: The Chair is ready to rule.
        The Chair is aware of the precedent cited by the gentleman from 
    Pennsylvania, but under the language as it is written in the 
    amendment offered by the gentleman from Indiana it is a negative 
    restriction, and therefore the Chair rules that the amendment is in 
    order.